Author: Georgia G. Coats

Court Rules The Fair Share Act Mandates Per Capita Division for Strict Liability (PA)

In 2014, Roverano brought an asbestos strict liability action against multiple defendants, claiming that his exposure to the defendants’ products (which contained asbestos) resulted in Roverano’s lung cancer. The trial court ruled in Roverano’s favor and, as applied to the Fair Share Act, held that the exposure from each respective defendants’ product was impossible to quantify, it would apportion liability on a per capita basis. In other words, there were six total defendants, so each defendant was responsible for 1/6^th of the $5 million verdict.  On appeal, the Superior Court reversed and held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors.  The Pennsylvania Supreme Court reversed the appellate court’s finding, holding that per capita apportionment amongst strict liability defendants at fault was required by the Fair Share Act. Specifically, the “plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.” Utilizing a cannon of statutory construction, the Supreme Court held that the Fair Share Act did not specifically and unequivocally repeal or preempt existing common law with respect to strict liability. Furthermore, the PA Supreme Court held that “requiring a factfinder to allocate liability between joint tortfeasors in all cases, including strict liability cases, is impossible of execution in asbestos cases.” The Court then declared “the plain language of the Fair Share Act indicates the liability is apportioned equally among strictly liable joint tortfeasors” leaving little room for lower court to distinguish on this issue. Thanks to Matthew Care for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Owner Escapes Labor Law Liability By Not Supervising Project (NY)

In Boody v El Sol Contr. the Appellate Division addressed the standard a defendant needs to establish to prevail on summary judgment on a Labor Law § 200 claim. The plaintiff was employed as a construction worker for nonparty Caribe Construction Co., a subcontractor hired by the general contractor El Sol Contracting and Construction Corporation, to install temporary scaffolding for a repair project on a bridge in Queens.  In order to complete its work, Caribe hired North East Marine, Inc. to provide tugboats and work barges, to transport Caribe’s employees, supplies, and equipment around the work site. The plaintiff allegedly was injured while he was attempting to cross between two barges positioned on either side of a pier supporting the bridge. The plaintiff alleged that as he was walking, one of the mooring lines from the tug-barge combination tightened and caught his leg, pinning it against the pillar next to which he was walking. Sol unsuccessfully moved for summary judgment dismissing the claims against it. On appeal, the Appellate Division reversed the ruling and awarded summary judgment to El Sol.  The Appellate Division held that Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work.  Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed.  Where a claim arises out of alleged defects or dangers arising from a subcontractor’s methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation. Expanding on the requirement of supervisory control under the “means and methods” context, the Court held that “a defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed.”  In contrast, “mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200.” Using this standard, El Sol, established that it did not exercise supervision or control over the performance of the work giving rise to the accident. Thanks to George Parpas for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Too Little, Too Late: Appellate Division Upholds Disclaimer for Untimely Notice (NY)

In Dritsanos v Mt. Hawley Ins. Co., the New York Appellate Division, Second Department, addressed the issue of whether plaintiffs can collect judgements from insurers where the insurer did not receive timely notice of the claim. The underlying case involved liability over a personal injury.  In July 2008, the plaintiff was allegedly stabbed in a nightclub in Brooklyn owned and operated by the insured, Ambela Corp. The plaintiff sued on December 9, 2008 to recover for personal injuries, naming Ambela as one of the defendants.  The insurer, Mt. Hawley did not receive any notice of the lawsuit until June 2009, when the insured’s broker sent a letter enclosing the summons and complaint. Although Mt. Hawley disclaimed coverage for untimely notice, the plaintiff eventually won a judgment against Ambela and the assailant. The plaintiff then commenced an action against Mt. Hawley under Insurance Law § 3420(a)(2), which expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer.  Mt. Hawley moved for summary judgment, arguing that disclaimer was valid since they did not have timely notice from the plaintiff. In reviewing this issue, the Appellate Division agreed with the insurer.  While normally the insurer disclaiming for untimely notice would have to demonstrate that it was prejudiced by the delay, such showing was not needed in this case since the policy predated that requirement in the insurance code. Rather, the Second Department held that merely hiring an attorney and commencing the lawsuit was insufficient as a legal matter to notify the insurer.  Thus, because the plaintiff did not act diligently to notify Mt. Hawley, their disclaimer was valid and the plaintiff could not recover on the judgment. The decision underscores the importance for insurers to investigate claims and provide timely disclaimers. Thanks to Andrew Debter on his contribution to this post.  Please email Georgia Coats with any questions.Read More

Plaintiff Skies Her Way To Multi-Millions In Verdict Award (NY)

In Zhou v Tuxedo Ridge LLC plaintiff , then a nine-year-old novice skier, was injured while skiing at the Tuxedo Ridge Ski Center. Prior to her injury, she took the chairlift to the top of the bunny slope and began her first run of the day. At the bottom of the bunny slope, the corral for the ski lift was separated from the rest of the slope by orange-and-black striped bamboo poles, an orange “slow skiing area” sign, and green plastic figures displaying the word “slow” that were used as warning devices. The injured plaintiff skied past the devices into what she thought was an open area where she could stop. However, she crashed into a white PVC pole which was being used as a stanchion to hold up an orange rope that designated where to wait in line for the ski lift. Following a jury trial, the jury returned a verdict finding Tuxedo Ridge 100% at fault in the happening of the accident. After a trial on the issue of damages, the jury returned a verdict awarding the plaintiffs the sum of $3,000,000 for past pain and suffering, $15,000,000 for future pain and suffering, and $1,000,000 for future medical expenses. The defendants moved to set aside the jury verdict on the issue of liability and to set aside the jury verdict on the issue of damages as excessive. The Appellate Division, Second Department, ordered a new trial on liability and deemed the damages awarded to plaintiff excessive. The Appellate Division found the lower court had erred by denying defendant’s request to charge assumption of the risk. While there was no evidence elicited at trial that the injured plaintiff expressly assumed the risk of injury, the evidence did support an instruction on implied assumption of risk. The evidence submitted also included the injured plaintiff’s deposition testimony that she believed it was safer to continue beyond the devices than to be struck by a passing skier if she fell. The devices warned skiers to slow down but did not warn them to stop. As to damages, the Appellate Division held ‘Awards of damages for past and future medical expenses must be supported by competent evidence which establishes the need for, and the cost of, medical care” and “jury awards for past pain and suffering will not be disturbed unless they deviate materially from what would be reasonable compensation.” Here, the jury’s awards for past and future pain and suffering deviated materially from what would be reasonable compensation. The injured plaintiff was nine years old when she fractured her right femur on the defendants’ ski slope. She underwent surgery to repair the injury and may require future surgery to address the leg length discrepancy and mild knee deformity. Based on the totality of her injuries, age, effect, and permanency, the Court concluded that the awards as to past and future pain and suffering was excessive. Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Second Circuit Applies IP Exclusions to Bar Coverage for Fashion Designer

In Nannette Lepore v. Hartford Fire Insurance the Second Circuit held that Hartford was under no obligation to defend or indemnify its fashion designer insureds in an underlying lawsuit alleging violations of intellectual property rights.  Hartford issued commercial general liability and umbrella policies to its insureds, Nanette Lepore, Robert Savage, Robespierre, Inc. and NLHE LLC.  In 2016, the insureds were sued in state court by NL Brand Holdings for claims arising out of the sale of the core assets of Lepore’s business.  The underlying complaint asserted 17 causes of action, including breach of contract and tortious interference with advantageous business relationship, and alleged that the insureds violated their licensing agreement by “flouting all contractual requirements governing use of the Purchased IP, failing to adhere to non‐compete and non‐disparagement obligations and public‐statement prohibitions, and wrongfully co‐mingling the Licensed Marks with the products and marks of third‐party collaboration partners.ʺ The insureds sought coverage in the underlying lawsuit from Hartford, who disclaimed coverage on the basis of a two-part intellectual property exclusion in the policies.  The first part excluded coverage for “personal and advertising injury” “arising out of any actual or alleged infringement or violation of any intellectual property right,” including copyright, patent, and trademark rights.  The second part barred coverage for any injury or damage in any lawsuit that “also alleges an infringement of any intellectual property right. The Second Circuit upheld the District Court and found that the IP exclusions barred coverage for the entire lawsuit.  First, the court noted that, even though there were no direct claims for IP relief, there are several allegations that the insureds violated NL Brand’s IP rights. Because the underlying lawsuit alleged “an infringement or violation of any intellectual property right,” the court straight-forwardly applied the exclusion and held that the insureds were not entitled to coverage. Thanks to Douglas Giombarrese for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Homeowners Continue To Avoid The Harsh Liability Imposed By The Labor Law (NY)

In Campanello v Cinquemani, the plaintiff allegedly was injured while removing trees from the backyard of the defendant’s Long Island single family home.  The plaintiff was hired by the defendant’s cousin, whom he considered his boss.  At the time of the accident, the plaintiff was using the defendant’s chainsaw to cut branches from a downed tree while another worker assisted him by pulling away the branches after they were cut.  The defendant’s cousin was operating an excavator to move another downed tree that was situated on top of the tree the plaintiff was cutting.  According to the plaintiff, as he was using the chainsaw to cut branches from the downed tree, the excavator moved the top tree, causing a branch underneath it to snap back and strike him on the forehead. The plaintiff filed a lawsuit against the defendant homeowner, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendant moved for summary judgment dismissing the Complaint. The lower court granted the defendant’s motion and the plaintiff appealed to the Appellate Division, Second Department. On appeal, the Appellate Division discussed the scope of the Labor Law, and the important homeowner exemption provision.   The Appellate Division noted that Labor Law §§ 240(1) and 241(6) provide an exemption from liability for “owners of one and two-family dwellings who contract for but do not direct or control the work.” The evidence submitted by the defendant in support of his motion, including the plaintiff’s deposition testimony, established, prima facie, that the work was being performed at the defendant’s single-family residence, and that the defendant did not direct or control the plaintiff’s work. Next the Appellate Division considered the plaintiff’s argument on appeal, that the defendant/homeowner’s activities in visiting the work site, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work, placed the defendant outside the protections of the homeowner’s exemption.  The Appellate Division ruled that these types of activities were “no more extensive than would be expected of the ordinary homeowner.” The Appellate Division also agreed with the Supreme Court that a common law negligence claim could not be upheld because the defendant did not create or have actual or constructive notice of any dangerous condition involving the tree branch and the defendant did not have authority to supervise or control the performance of the plaintiff’s work.  Accordingly, the Appellate Division affirmed the dismissal of the action. Thanks to George Parpas for his contribution to this post.  Please email Georgia Coats with any questions.Read More

Owner Not Liable For Injuries To Tenant’s Guests (NJ)

The New Jersey Supreme Court recently issued a landmark ruling on the duty of a commercial property owner to maintain a leased property.

In Baldwin Shields v. Ramslee Motors, the court considered whether the owner of a commercial property owed its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant.  The clear and unambiguous lease agreement between the parties stated that the tenant was solely responsible for the maintenance and repair of the land and any structure of the premises, as if the tenant were the de factor owner of the leased premises.  The tenant also testified at a deposition that they were responsible for clearing snow and ice from the property.

The court ultimately held that the tenant was responsible for the removal of snow from the driveway, and that the property owner was not responsible since they had relinquished control of the property to the tenant.  This case is notable since commercial landowners typically have a non-delegable duty to maintain their property. This case appears to carve out an exception when the tenant has exclusive control and possession of the property.

Thanks to Heather Aquino for her contribution to this post.  If you have any questions, please email Georgia Coats.

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Piling Up The Slush Leads To Potential Negligence (NY)

In Berganzo v. Bronx Realty Group LLC, the Appellate Division, First Department addressed whether the defendant/property owner created an icy or slushy condition by improperly piling snow in the area where the incident occurred.

The case involved a personal injury action where the owners moved for summary judgment arguing that they did not have actual or constructive notice of the icy condition which caused the plaintiff’s alleged fall, and that the fall occurred while a storm was in progress. The plaintiff slipped on ice on the defendant’s property between 5:00 am and 6:00 am. The defendant’s argued that since it was raining at the time of the accident that they were relieved of their duty to keep the premises safe until the storm concluded.

The lower court denied the defendant’s summary judgment motion on the basis that issues of fact existed as to whether the property owners negligently caused the condition by piling snow in the area where the incident occurred. Specifically, one witness alleged that there was 3 to 4 inches of snow in the area of the incident in the days prior to the accident. The Appellate Division affirmed and held that issues of fact existed as to whether the defendant’s created the icy or slushy conditions.

This decision serves as a reminder for property owners that when piling snow on their property to be careful that it does not create a dangerous condition.

Thanks to Corey Morgenstern for his contribution to this post.  Please email Georgia Coats with any questions.

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It’s Electric: Broad Construction Exclusion Bars Coverage for Sprinkler Shock (NY)

In the recent decision Castlepoint Ins. Co. v Southside Manhattan View LLC, the First Department addressed the applicability of a broadly worded construction exclusion.   That exclusion expressly provides that it applies to any work performed as part of or in connection with the enumerated construction operations.

The underlying litigation concerned a personal injury that occurred at a construction site. The plaintiff alleged that while working on sprinklers at the site of a renovation project, he fell off a ladder after touching live, uninsulated electrical wires.  The insurer for the building disclaimed coverage, citing the construction exclusion in the policy.

The plaintiff argued that the work he was doing at the time of the injury, working on sprinklers, was not a part of any of the specific construction operations enumerated in the exclusion, and accordingly should not apply.  But the court was not convinced.  The First Department held that because the exclusion language applied not only to work that was part of but also “in connection to” the enumerated operations, it unambiguously applied to the sprinkler operations at issue.

This decision is a reminder to insurers and insureds of the importance of precise drafting in insurance contracts, particularly with respect to exclusions.

Thanks to Andrew Debter for his contribution to this post.  Please email Georgia Coats with any questions.

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“Urine Trouble” for Intentional Act, Court Tells Insurer (NY)

In Unitrin Auto Home Ins Co. v. Sullivan, the Second Department declined to apply the intentional acts exclusion to bar coverage for a claim arising out of a claimant’s injury after being hit with a cup of urine.

In 2005, the insured was driving a car covered by a policy issued by Unitrin Home and Auto Insurance Company (“Unitrin”) along with two passengers.  For unknown reasons, the parties wished to empty a cup filled with urine on a passerby.  However, the passenger, apparently unintentionally, hit the passerby in the face with the cup itself, causing personal injuries.  The claimant filed a personal injury action against the insured.  After various motion practice, the only surviving claim against the insured was for intentional tort.  Unitrin subsequently disclaimed coverage based on policy exclusions for intended injury and for intentional acts.

The trial court granted summary judgment to Unitrin, finding that, because the harm flew directly from intentional conduct, i.e. the desire to empty the contents of the cup, the harm is deemed intentionally caused.  This was the case, the trial court held, “irrespective of the insured’s subjective intent and notwithstanding that the actual injuries may have been more extensive than he anticipated.”

On appeal, the Second Department reversed and held that a triable issue of fact existed as to whether the events constituted an “accident” under the policy.  Specifically, the court held that, although there was evidence the parties intended to douse the claimant with urine, “there was no intent to throw the cup and strike” the claimant.  The court distinguished cases where “the intentional act exclusion applies regardless of the insured’s subjective intent.”  In these cases, such as sexual abuse of a child, the exclusion applies regardless of the whether the perpetrator lacked subjective intent of causing harm.

The Unitrin decision further limits the extent to which courts will bar coverage for intentional acts, even if the ultimate harm directly flows from the intentional conduct.

Thanks to Douglas Giombarrese for his contribution to this post.  Please email Georgia Coats with any questions.

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